Harrell raises SC judicial independence questions

South Carolina’s attorney general is preparing to argue Tuesday before the Supreme Court why he – and not a legislative ethics panel – has the singular authority to investigate House Speaker Bobby Harrell.

The justices’ decision will certainly have implications for how prosecutors handle future cases, but concerns are also being raised that not even the court system in the state is immune from legislative influence.

Attorney General Alan Wilson is appealing a circuit judge’s ruling that the House Ethics Committee must first consider allegations that Harrell used his powerful position for personal benefit before the Attorney General’s Office gets a crack at the case.

But Wilson contends that he doesn’t need legislators to sign off on cases he chooses to pursue.

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The case traces back to a complaint by Ashley Landess of the South Carolina Policy Council, a libertarian-leaning think tank that advocates limited government. Landess brought to Wilson allegations that Harrell – a Charleston Republican and House speaker since 2005 – used his influence to get a permit for his pharmaceutical business and improperly appointed his brother to a judicial candidate screening committee.

Harrell has decried the charges and investigation as “politically motivated.”

Wilson, also a Republican, asked state police to investigate, then began presenting those findings to the State Grand Jury. Harrell’s attorneys objected, and Circuit Judge Casey Manning ultimately ordered Wilson to halt the inquiry, ruling earlier this year that such allegations against a lawmaker must first be heard by a panel of Harrell’s legislative peers.

That committee can only handle civil issues and, should it determine criminal charges are possible, must refer the case to the attorney general for potential prosecution.

Wilson disputes that. He says that, as the state’s chief prosecutor, he has sole authority to determine what cases merit the court’s consideration.

But some people are questioning whether any court could be unbiased in a case involving a lawmaker. That is because South Carolina is one of only two states where lawmakers elect judges. Judicial applicants are screened by a panel that is selected by legislators. The panel then passes on recommendations to the Legislature for final approval.

The process creates a judiciary that is beholden to the Legislature, some say.

“That’s the separation of powers that’s missing in this state,” Landess told The Associated Press recently. “This shouldn’t be hard. It should be really easy and obvious.”

Sen. Tom Davis, R-Beaufort, an attorney, said changing the way judges are elected should be part of ethics reform.

“Judges deserve a degree of insulation from the people they depend upon for their funds to operate and who elects them,” Davis said. “Until we get these basic things, that’s why South Carolina has these problems.”

Gibbs Knotts, a political science professor at the College of Charleston, said many of South Carolina’s judges have also served as legislators, which results in a lack of separation between the two bodies.

“There’s this inbreeding where you’ve got people leaving the Legislature to become judges,” he said. “The whole hallmark of our system is to have an independent judiciary that can make decisions about things in a way that keeps the politics out of it.”

Landess has long said it should be up to the governor to nominate judges. The state Senate should then have the power to confirm or reject the nominee.

Harrell himself exerts so much control over both the screening commission and the judicial elections process that it is easy to see a conflict of interest arising, Landess said.

“Bobby controls half the committee that screens out the judges,” Landess said, referring to the five appointments up to the House’s discretion. “His brother is one of the people he put on that panel.”